DOJ defends special master

The government defends the appointment of a "special master" to assist the judge in its antitrust suit against Microsoft.

January 27, 19984:10 PM PST

The appointment of a "special master" in the Justice Department's antitrust dispute with Microsoft
was warranted by the complexity of the case and well within a federal judge's authority, the government argued in a court brief today.

The document,
filed with the U.S. Court of Appeals for the District of
Columbia, responds to a petition Microsoft filed earlier this month asking
the appeals court to immediately suspend proceedings being conducted by
visiting Harvard Law School
professor Lawrence Lessig. In December, U.S. District Judge Thomas Penfield
Jackson appointed the computer and Internet law expert to weigh evidence in
the case and make a recommendation by May 31.

The government brought the case last October, arguing that Microsoft's licensing
requirement that its Internet Explorer browser be bundled with Windows 95
violated terms of a 1995 consent decree.

Microsoft first asked Jackson to reconsider the appointment, arguing that
it was not warranted by the particulars of the case. It also argued that
Lessig writings in email and scholarly articles demonstrated bias
against the software giant.

After Jackson issued Microsoft a blistering denial, the Redmond,
Washington, company filed a "writ of mandamus" with the appeals court that
argued Jackson's order was "incompatible with basic principles of American
jurisprudence" because it violated Microsoft's constitutional right to have
the matter handled by a federal judge.

The government's brief filed today took strong exception to Microsoft's
claim, arguing that the difficulty of the case, combined with the
importance of resolving it quickly, made the appointment appropriate.

"Through his ongoing proceedings and proposed findings, Professor Lessig will...focus the issues, economize the range of specialized knowledge the court must assimilate to resolve the dispute, and thereby facilitate the court's swifter resolution of it," government attorneys wrote.

"The district court did not cede authority to adjudicate the merits to the
special master or otherwise withdraw from involvement in the case," the
government added. "To the contrary, the findings Professor Lessig is to
prepare will merely be 'consider[ed] by the court' in ruling 'on the issues
raised by [the] case.'"

The government also argued that the filing of a mandamus petition--court
lingo for an extraordinary appeal--was not warranted by the special
master's appointment because it didn't raise any "untoward or irretrievable
delegation of judicial authority."

A Microsoft spokesman said that despite today's filing, the company's
position remains the same.

"The trial court has attempted to send virtually the entire case to a
private citizen for all fact finding and recommendations of law, and we
believe that is not permitted under the rules," said Microsoft's Mark
Murray. "Microsoft has a right to have this case heard by a judge, not a
private citizen."

Today's brief is just the latest in a seemingly nonstop stream of
court documents and press releases. The appeals court is already
considering a separate appeal of an injunction temporarily requiring
Microsoft to offer a version of its operating system that does not carry
Internet Explorer. The first motion on that matter will be filed this
Thursday by Microsoft, and a hearing is scheduled for April 21.

At the same time, proceedings before Lessig are ongoing, but both sides
have declined to give details, citing a confidentiality agreement. In
today's brief, however, the government reported that Lessig "has engaged in
several exchanges with the parties designed to determine the relevant
technological and legal issues...[and] has expedited proceedings with a
view toward meeting the May 31, 1998, deadline for his proposed findings set
by the district court."